Author: redheadedlaw

Christmas Is For Kids

Written by redheadedlaw on December 13, 2021. Posted in Child Custody, Christmas, Parental Rights.

Helping Families Plan Stress-Free Holiday Gift Giving

In previous years I have written about holiday strategies for families. It is important to get through this period without problems and divisiveness, and to keep the kids feeling jolly in spite of any parental turmoil. Today I will be a little more specific. There are times when two parents cannot agree on much of anything, let alone gifts for their children. Here are some strategies to help ensure this annual event goes smoothly, along with several traps to avoid at all costs.

Don’t Make it a Competition

Kids are truthful when you ask about their needs and wants, but sometimes this can pit one parent against the other. If your son wants a hoverboard, he may tell one or both parents, but without coordination this innocent wish can go bad quickly. What happens if the dad wants to look like the hero and buys the most expensive hoverboard? Then the mom is hurt because she will look like a Scrooge if her gifts are not equally grand. Or, possibly she bought a hoverboard too, but a less-expensive one. No matter which board is opened first, tempers are guaranteed to flare. Children are already in a delicate position during marital difficulties because many internalize at least part of the blame. Don’t turn gift-giving into a game of one-upmanship.

Gifts Should not Become Punishments

Let’s say dad did buy a hoverboard and it was enthusiastically received. It would not be fair to insist that this toy only be used at the dad’s house. Or, if it was used with great joy at both homes, it wouldn’t be right to take the opportunity to deride the dad for his gift, or express sadness to the child over his/her obvious enjoyment. In addition, never hold a gift over your child like a bludgeon (example – since you love that hoverboard so much, I guess we don’t need to go to Disney World this year). And depending on their ages, children will usually ask one parent for help in buying something for the other. You know where I’m going with this – don’t take this innocent request as an opportunity for sabotage. If you know your wife hates orange, don’t help your daughter buy a gaudy orange headband. Children are pure of heart and will take your gift-giving advice as gospel. If your spouse sends a check, be sure the child knows about it – even better, why not put it into a small box and wrap it up?

How to Successfully Coordinate Holiday Logistics

When two parents are apart, there are logistical as well as communication challenges to be overcome. Even Christmas Day can be a point to negotiate – where do the children open gifts, and who is present? Sometimes it’s not possible for both parents to host their children. In this scenario, maybe two Christmases or similar celebrations can be held on successive evenings. The kids may very well be thrilled at the idea of having two of something they already love. By focusing on the needs of the kids, the issues surrounding the logistics of holidays can be more easily discussed and resolved.

Coordinate Your Gift-Giving

As mentioned earlier, this can be a very sensitive area. One way to ease the competition (spoken or unspoken) between parents is to agree on a specific framework. Diplomats do this for heads of state, and why not apply the concept to parent heads of state? You can decide that each parent will purchase one gift from each of the following categories:

Clothing
Toys
Electronics
Sports Equipment
Food or Dining Cards
Cash or Gift Cards

In this evenly matched scenario, each child will get 12 total gifts – a number that is guaranteed to put a smile on their little elf faces! Of course, the possibility of one-upmanship still exists, so communication is still necessary, and all the other warnings must still be heeded. But this allows more precise requests from the youngsters, and gives them two chances at their favorite things. Swapping one category for another is easy and recommended (for example, trade sports equipment for music equipment), depending on their interests. This is also a teachable moment for the parents, as they must engage with their kids to assess their current interests (which may have changed).

Even if the diplomatic solution is too complicated, there are other ways to handle the annual Amazon shuffle. Parents can agree on a dollar limit each, which can reflect the likelihood that one earns considerably more than the other. Or each can contribute towards a larger purchase, like a teenager’s first car (demonstrating how big-ticket items don’t just appear – they have to be saved for and earned). Communication will also prevent “undesirable” gifts from being opened (or at least provide early warning that a snake is moving in).

Focus on Common Interests

Believe me, I’ve seen it all in my 30+ years of practicing law. The children are often the first casualties in a divorce battle, but it doesn’t have to be that way. No true parent wants their children hurt by a divorce, and it is wrong to draw them into the fray. By focusing on them and how they currently view their world, parents can preserve their innocence while molding and managing their expectations for the future. If you have any questions or would like more information, please feel free to schedule an in-person or online appointment with The Essex Firm.

The Truth About Mediation in Divorce Cases

Written by redheadedlaw on October 1, 2021. Posted in Divorce, Mediation.

Mediation is one of those topics that everyone has heard of, but most do not fully understand. In many industries, agreeing in advance to resolve disputes via mediation is mandatory. Although the mediation requirement depends on the court and local county rules where the case is pending, mediation has become required in most family law cases in recent years. The requirement has resulted from the increase in divorce and related family law cases. In promoting mediation, the Texas legislature is seeking to relieve family law courts of the tremendous burden of increased cases, especially in the larger metropolitan areas. It is not unusual for a family court in one of these counties to have 50 cases on the docket any given day. Depending on the court, there may be only one judge available. It has become overwhelming for the judges and their staffs, and this has led to litigants waiting an unnecessarily long time for their cases to conclude.

Mediation does have a number of advantages over litigation, but also a number of pitfalls you must understand. Today, let’s review the advantages and disadvantages of mediation in divorce situations and why getting legal advice is still essential.

First – Mediation is not Arbitration

While both are alternative dispute resolution processes, arbitration is closer to a legal proceeding. The arbitrator hears testimony, reviews evidence, and makes a decision. An arbitrator is typically a retired judge, an attorney, or some other professional. The primary difference in arbitration is the idea that the arbitrator will hand down a legally binding decision at the conclusion of the proceeding. This differs from mediation, where the point is to reach a negotiated settlement. There generally isn’t much negotiation in arbitration.

So What is Mediation?

By definition, mediation is a process utilizing a neutral professional (the mediator) to help the parties identify issues and resolve disputes. In a divorce setting, the involved parties are the estranged spouses. Below are some of the benefits to mediation (compared to court):

Usually Saves Time and Money – Reaching a divorce agreement via mediation is much less expensive than the traditional route of trying a case to a judge or jury. It can also be much faster (with no court dates to secure) and may make it possible to avoid some of the legally prescribed waiting periods in divorce proceedings (but not the 60-day waiting period for a divorce to be finalized in Texas).

No Dictated Settlement – Mediation is all about negotiating an agreement. If the parties have been unable to resolve (for example) issues like the division of assets or child visitation, mediation allows the parties to craft their agreement. Nobody knows better than the parties the details of their situation, especially when children are involved. A judge or jury will be bound by the Texas Rules of Civil Procedure, which often limits what facts a judge or jury can present. Since mediation is not a court proceeding, almost any facts can be put on the table, often leading to a much more workable solution for the parties than they would get in a courtroom.

Caution: Mediation is a process undertaken at a very emotional time and should be approached with legal representation and guidance, even in what seems like a “simple” case. Because mediation is binding (as discussed below), the decisions reached in mediation may drastically affect the outcome of the case. Most of the decisions made there usually cannot be undone, even by a judge.

What to Watch Out For

Attending mediation without legal advice – A mediator is a neutral party whose duty is to facilitate an agreement. Mediators do not find fault, issue orders, or make decisions. Unless you have professional counsel present, the only person looking after your best interests at mediation is you. Mediation can quickly descend into chaos because even though it is an informal process, it is still highly emotional. Any manipulative, domineering or abusive behaviors present during the marriage can resurface during mediation, with the same results. An attorney representing you will not allow this to happen.

Illegal Actions May Not Be Discovered – A mediator is not expected to ask the right questions or do the proper research to uncover (for example) hidden assets, only to try to facilitate an agreement. A skilled attorney would be qualified to investigate and use the discovery process to ensure all parties have a complete and accurate picture.

Mediation is Binding

Consider this – wouldn’t you want some expert advice when making decisions that will impact the rest of your life? You definitely would, and it’s the smart approach. Mediation is legally binding, and once such an agreement is signed, if the proper legislative requirements are followed, there isn’t anything anyone (even your lawyer) can do to change it. However, if you consult a lawyer before mediation, you will receive guidance that will likely pay for itself a hundred times over. You will also gain insight into the mediation proceedings, what to expect, the difference between legitimate requests and non-starters, and a professional assessment of what will be fair to expect or pay in support given your unique circumstances. Even after you have an agreement, an experienced family attorney should review it to be sure it accurately reflects what was discussed.

You Get What You Pay For …

A mediator does not have to be an attorney. Some financial planners and other professionals take mediation training and become mediators. They promote their services as being less expensive than hiring an attorney, especially if both parties attend the mediation without counsel. The problem with this is while the financial planner can do a spreadsheet of the assets and liabilities, and the non-attorney mediator can tell you how good they are at negotiation, they are NOT lawyers. They cannot give you legal advice. They have not tried cases in the court where your case is pending. They cannot tell you if the agreement you are considering would meet the “smell” test of the judge in your court. Why does that matter if that judge cannot overturn the agreement? It matters because to make a rational decision about the offer on the table, you have to know what your risks are. Your risks are determined by the judge in the court where your case is pending. You must weigh the offer on the table in mediation with what the judge in your court is likely to do, or else how do you know if you are making a good decision? You must weigh what is on the table against the costs to try to case in front of that judge. And that is why if you have legal representation, your attorney will ensure that the mediator helping you resolve your case will also be an attorney, once well versed in family law AND in the court where your case is pending. And that means when you make these life-changing decisions in mediation, you will make the best decision possible for you.

If you have any questions on this or any other family law issue, feel free to contact us and schedule a virtual or in-person consultation.

Vaccinating the Kids

Written by redheadedlaw on August 23, 2021. Posted in COVID-19, Divorce, Vaccination.

Divorce and Vaccinations – How to Agree if There’s No Agreement

Believe it or not, August is here and kids are heading back to school. Unfortunately, so is COVID. Everywhere we turn there are new debates and mandates about the various COVID-19 vaccines. What began as a blessing and a choice is fast becoming a requirement. Industries including healthcare, government employment, hospitality and professional sports are requiring proof of vaccination for continued employment or participation. The rules of vaccination are changing faster than the law, and divorced parents can’t keep up. This can cause serious family problems.

Is a Public School Mandate Coming?

To date, the COVID vaccine has not been mandated for attending public school in Texas. However, in the past, school attendance has been conditional on being vaccinated for other diseases. After decades of MMR and TB vaccines (among others), this practice has become accepted as part of our culture. With this in mind, a new, nationwide COVID vaccine mandate would simplify the lives of parents – the choice would be public school or home school?

Are Vaccinations Considered Invasive Procedures?

This is becoming an important question. The State of Texas has not defined “invasive procedure” in the Texas Family Code, nor has it been defined by the courts. Within a Texas custody order, a parent may have been granted the right to consent to medical, dental and surgical treatment including “invasive procedures” for his/her children. Or a parent may have the right to make educational decisions. But even if a parent has both of these rights, forcing a child to get vaccinated (over the objection of the other) is still without precedent.

Mom vs. Dad – Differences of Opinion

As with other types of vaccinations, parents often have differing opinions as to their necessity. Add this to the uncertainty over the definition of invasive procedure, and you can see how a legal morass could develop. However, if vaccinations are ultimately defined as invasive procedures, any Texas parent with the right to make medical decisions for their children would have the final say. Until that time, the situation is ripe for conflict. It is also possible that state (or even school district) mandates may be at odds with existing Federal law. States might prohibit mandates and schools might endorse them, putting parents right back where we started – unable to agree on a course of action.

Mom and Dad – Communication

With so much up in the air, the sooner the vaccination conversation begins between divorced couples, the better. Although often difficult, it is important to remain open, honest and calm in having this discussion. It’s not a war, but an exchange of ideas. Everything needs to be on the table, right down to which vaccine (if any) should be considered. Never assume it is okay to vaccinate without consulting the other. This is a conflict that should be avoided. In some cases, events might force one’s hand. If a parent wants to take a child overseas, a vaccination might be unavoidable.

Litigation – Not Your Best Option

For all the reasons discussed, you can see how avoiding legal conflict may be your best option when considering whether or not to vaccinate a child. The law is still evolving on this matter, and even if there is passionate, irrevocable disagreement among parents, courts are backlogged because of (you guessed it) COVID-19.

This is a complicated topic for a number of reasons. If you have any questions on this or any other family law issue, feel free to contact Essex Law and schedule a virtual consultation.

The Truth About Legal Fees

Written by redheadedlaw on July 19, 2021. Posted in Consultation, Legal Fees.

One of the first bits of wisdom I ever received from my grandfather was “you get what you pay for.” He grew up during the depression and probably learned the hard way that you won’t get something for nothing – there’s always a cost built in somewhere. While we have all become skeptical of grandiose claims, it’s still tempting to grab at those freebies. In my experience, obtaining the best outcome in a divorce case requires an up-front investment. Allow me to tell you why as I provide the benefits of hiring the Essex Firm for your family law needs.

Managing Stress

If you research the list of life’s most stressful events, divorce comes in second (right behind the death of a spouse). No one takes the death of a marriage lightly either. It involves a cascading series of critical decisions, such as how assets should be divided, what kind of support is warranted, and how to provide for children. Each of these questions has life-long implications and could tie you up in knots for weeks – taken together, it could seem like an impossible task. I have 30+ years of experience in family law, and you definitely want experience in your corner during this trying time. I know what works, I know Texas law, and I’ll get the job done with the fewest surprises while keeping stress levels low.

Managing Emotions

It is certainly easy to get lost in emotion during a divorce, and when you do, responses are “in the moment” rather than forward-looking. Arguing about how you feel may seem satisfying at the time but it doesn’t get you any closer to resolving the matter at hand. I will help you ask yourself the tough questions, like is the marriage really over? Are there religious aspects to consider? What will be needed for children of all ages (and sometimes for elderly family members)? I will also help you identify actions and language intended to wound rather than move the parties toward resolution in accordance with the law.

Knowing the Law

Texas law states that property in a divorce case should be done in a way that is “just and right.” The courts will ultimately decide this question, but I will represent your best interests during the division process. First, we will classify property as marital and non-marital. Then, we will assign values – this can be pretty easy (a 401k balance) or more complicated (a family pet). Last, we will come up with a division plan. We will also review documents like prenuptial agreements and consider questions like the length of the marriage and if alimony is applicable. The industry in which one or both spouses work can also be extremely pertinent. Here in the Houston area, there are industry-specific questions for medical practices, for interests in working oil wells or leases, and for the military. You will get the entire benefit of my 30+ years in this practice.

All-Inclusive Cost

Yes, we charge a $350 consultation fee and recognize some practices don’t. But here’s why we do it, and why it is in your best interest to pay it. We know the information we need to accurately assess your unique situation, and we start our consult with these questions. By the time the consult is over, you have real legal advice that is yours to keep. If you choose to hire us, the consult fee is applied as a credit to your total cost. But because we ask the right questions, at the end of the consult we also know enough about your case that we can offer you a flat fee for our services. No hidden fees, no nitpicky charges for emails or extra questions or returning calls or copying. Our fixed price equals one less thing you need to worry about during a very stressful period. We value your time and we value ours too. This is why it is more expensive to settle some divorces – the more income, the more assets and the more possessions a family has, the more there is to discuss and the longer it will take. This is always reviewed during the initial consultation.

You Do Get What You Pay For

At the Essex Firm, I bring my 30+ years of experience to every client meeting. We review all the facts, all the concerns and scenarios, and then I can provide a fixed cost quote for the entire process. No watching the clock and consolidating emails needed – we are just here to represent you and obtain the best possible result. If you don’t want to pay a consultation fee, I’m sure there are practices that will oblige you. But if want to get this done in the least time with the least stress and no surprises, please feel free to schedule an in-person or online appointment.

What Is Deemed Income In Child Support Orders

What is Deemed Income in Texas Child Support Orders?

Written by redheadedlaw on February 22, 2021. Posted in Child Support, Deemed Income.

Anyone who has watched “Dateline” may already be familiar with the term “imputed income,” which in Texas is referred to as “deemed income.” These crime drama shows often feature someone (usually the husband) who is trying to avoid financial obligations to his or her children. But what is deemed income, and how does a court decide that this calculation is lawful and appropriate in a family law setting?

First – Some Important Definitions

Deemed income is the amount of income a court uses in child support calculations when it decides, for any variety of reasons, that using a parent’s current reported income would be inappropriate.

To understand how this works, it is first important to start at the beginning. How is child support calculated in Texas? Child support is based on the obligor’s net resources (an obligor is a person obligated to pay child support). The Texas Family Code for determining net resources can be summarized as including:

100 percent of all wage/salary and other compensation for personal services (including commissions, overtime pay, tips, and bonuses)
All interest, dividends, and royalty income
All income from self-employment
Any net rental income profit
Any other income being received (severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits other than supplemental security income, etc.)

Resources not considered for including:

The return of principal or capital
Amounts owed such as accounts receivable
Payments for the foster care of a child
Benefits paid from federal public assistance programs

The court will deduct certain items from these resources to determine the net resources available for child support, such as social security/state/federal income taxes, the cost of medical insurance for the child, non-discretionary retirement plan contributions (in some cases) and union dues. This is all standard practice if the obligor is employed, but if self-employed, there may be gray areas to negotiate.

If the obligor is not employed or has income which is significantly less than what he or she earned previously (say, the last six months or year), there may be a claim that the obligor is intentionally unemployed or underemployed. The person seeking child support may request that the Court base child support on something other than the obligor’s actual reported “net income.”

What is Deemed Income?

The definition of deemed income can be summarized as follows:

When appropriate, the net resources calculation may compel the court to assign additional income to an obligor attributable to assets that do not currently produce income. The court will consider if non-income producing assets should be liquidated, or if market conditions would preclude such action. The court may also assign a reasonable amount of deemed income to income-producing assets that have been voluntarily transferred or on which earnings have intentionally been reduced.

What Factors are Reviewed to Determine Deemed Income?

What factors will the court look at to decide if there is deemed income (e.g., the obligor is intentionally underemployed or unemployed)? This determination is based on the “child’s best interest” standard and the statutes quoted above, along with the answers to a number of questions pertaining to the parent who will be responsible for the support. These include:

The parent’s educational level
Past earning history
Employment history
Current employment opportunities in the area
Was the lost job due to a layoff
Did the business close or get sold
Is the parent’s job commission-based
Has the parent continued to seek work

Avoiding an Obligation

The primary reason for under-reporting income to a family court (either by false statements or by taking a lower-paying job) is to lower child support obligations. Two examples are shown below:

A husband quits his well-paying job prior to a court date so he can truthfully say he is unemployed. The same intent would be behind someone leaving a good job to take a more menial position at less pay. If a court determines that a parent is purposely earning less income than their skills and experience would normally dictate, it can examine how much similarly qualified people earn in the area and base support on the higher figure. This would also provide strong motivation for the paying parent to find a suitable job. Of course, there can be mitigating circumstances in these cases. Perhaps one parent left a job to care for the child or an aging relative, or the parent learned of a downsizing and took some severance while it was available. Courts will look into why an employment situation has changed, and consider all the facts surrounding the reduction in reported income.

Some states don’t “deem” income to a parent who is already caring for young or special needs children. A parent attending a university or trade school may also avoid having income deemed, but once school/training is over, their support responsibility will likely increase due to their increased marketability to employers.

Challenging a Deemed Income Ruling

In order to challenge a deemed income determination, a parent will usually have to supply proof of their circumstances. For example, if they are currently looking for a job, they may have to prove they are contracting with a job search agency and completed state-required unemployment registrations. Courts may also request proof that the parent has an up-to-date resume and has current profiles with job search sites like Indeed or Glassdoor. LinkedIn would also be reviewed – why would anyone seriously looking for work not have a current profile on LinkedIn? If all of these factors check out, it is likely the court will consider a lower support amount, at least temporarily until more gainful employment is obtained. However, if any of the following are discovered, the parent will be in trouble with the court (and owe more support).

Evidence showing the parent has not consistently sought employment
Documentation that the parent voluntarily and intentionally quit their job
Employer statements that the parent turned down a promotion, new job or bonus
Any evidence showing the parent delaying receipt of a bonus
Witness statements (or social media posts) showing intent to avoid support

In a recent Texas Appeals Court case, the Court affirmed the lower court ruling that the father was intentionally unemployed or underemployed. In this case, the difference in income was significant and the father did not provide evidence of a job search. Slightly different facts could lead to a different result.

Deemed Income Can Be A Gray Area

If a person seeking child support is alleging intentional underemployment or unemployment of the obligor, the burden of proof is on the person seeking the higher child support. As you can see, the topic of whether deemed income will be calculated contains a lot “ifs” and “buts.” However, the bottom line is this – during the past year, COVID-19 has had a profound impact on business activity, and many people lost their jobs or had reduced income. To be clear, a judge won’t impute income just because a parent should be earning more, only if the evidence shows that they are choosing to do so. If you have any questions on this or any other family law topic, feel free to contact Essex Law and schedule a virtual consultation.

10 Fun Things to do with the Family this Christmas Season.

Written by redheadedlaw on December 15, 2020. Posted in Christmas, Holiday Season.

We can all feel it – even though the holidays are upon us, it is understandable that travel stress and economic uncertainty have disrupted traditional celebrations. Zooms and Skypes can only replace a part of what we’re missing, but what can be done? I’ve never experienced anything like this either, but here are 10 ideas on how to add a little light to this unprecedented moment in time.

Get outside – There really is scientific benefit in getting outside and feeling the sunlight. It improves sleep, reduces stress and actually helps keep you from gaining weight (not a bad thing when culinary temptations abound). But even more importantly, it strengthens the immune system and helps prevent depression. If you have a fire pit, light it up and send the photos to your jealous friends in Minnesota.
Take a drive and see the lights – This is a free activity (except for gas), and it can be really fun. If in your normal early evening travels you see an impressive display, check out the neighborhood (birds of a feather, right?). Or, check online, since some areas post where to see the best shows. The Woodlands offers this link, and here are some ideas for Houston. There are also a number of paid alternatives as well, like The Light Park. Jump in the car with some hot chocolate and popcorn and go on a light hunt!
An oldie but goodie (Secret Santa) – It’s almost mid-December, but if the economic slowdown has impacted you, Secret Santa might help. Pick a family member in secret and everyone gets to buy or create a gift for a different person. No one will know what’s coming, and possibly this anticipation will at least add some excitement to an otherwise gray period.
Build a gingerbread house – These are very inexpensive, and really nice kits can be found at stores like T.J. Maxx and Kroger’s. Everyone can join in and help build one, or maybe you make it a competition and have the kids against the parents, or some other combination? Either way, it’s a great way to do something constructive (that you get to eat later).
Play Christmas charades – This can be fun anytime, but especially now when a lot of normal activities are shut down, have reduced capacity, or just don’t feel safe to do. You can buy an “official” Christmas charades game at (say it with me) Amazon, or you can easily cut up some paper and write different Christmas topics to act out. This latter homemade version might turn out to be the most fun!
Donate items – Here’s a way to give back to the community at a time when the community really needs some giving back. Why not do your New Year’s or spring cleaning now? If you are like me, the amount of useful items you will uncover will be quite a shock. And I guarantee that Goodwill, the Salvation Army, Interfaith and others will be so grateful.
Have an ugly sweater contest – Ok, so why would anyone want to make an ugly sweater on purpose? Because it’s an indoor, low-cost activity where everyone can participate. Pull out some old shirts, sweaters and/or pajamas (that you found while doing idea 6 above), and then draw, cut up, stitch and create! The winner gets a prize of their choosing (or whatever you decide is an appropriate prize). The prize doesn’t have to be an item – how about a coupon book waiving (for example) dishwashing duty for the week?
Make holiday cards – If you believe the news, it might be too late to make actual cards at this point in the month. But fear not – the internet to the rescue! Hallmark, American Greetings, Blue Mountain and more all offer e-cards that can be created and sent in minutes. Want to send a video message instead? Elfyourself, Jibjab and many others can make you a star (at least among your family and friends).
Add decorations to your home or yard – While you may already be happy with the looks of your yard, why not step it up? If there are any extra lights and ornaments lying around, why not decorate a second tree (or a third)? Or, check your yard for a tree, a bush, or shrub that might make a holiday statement and decorate it. If you don’t have any yard forest to spare, decorate for a neighbor instead (probably should ask first to avoid grinch-like encounters).
Surprise the neighbors – In the old days (last year and all previous years), it was a simple matter. Bake some sugar cookies, sprinkle them with green and red sugar, wrap in colored cellophane (from the Dollar Store!), tie with ribbon and deliver to your neighbors. Now, anything homemade is potentially toxic, so you have to be a bit more creative. Check out the seasonal sections at Wal-Mart or Target for inexpensive items (like cocoa bombs) and make like Santa.

These are all easy, free or inexpensive activities you can do with your families, and all are Dr. Fauci-approved. It is important to seek or create something positive in the midst of everything negative. I have found that by spreading joy I am joyful. I believe you will feel the same way.

Which parent decides on school attendance during pandemics?

Written by redheadedlaw on November 30, 2020. Posted in Child Custody, COVID-19, School Attendance.

When thinking about the law, one of the most important considerations is how legal decisions are made. Many times, courts are asked to rule about something that has already happened but has no supporting body of law (i.e. no precedents). Twenty-five years ago, social media was brand new and as it gained influence, there were disagreements leading to new litigation. Today, laws pertaining to social media are fairly well established. Enter COVID-19. This has huge implications in a family law setting – today let’s consider who decides if a child can return to school or not during a global pandemic.

The devil is in the details (unless there aren’t any)

Many custody agreements are written in broad terms, but some contain a level of detail that would put the Internal Revenue Code to shame. I am confident in saying 99.99% of pre-pandemic custody agreements never considered how to settle a disagreement about a child attending school. Prior to March of 2020, there was nothing to discuss – kids either went to school or were home-schooled. Now everything has changed. Consider this real-life scenario:

A divorced couple with an 11-year old son have a divorce decree stating parents will jointly make education decisions, even though the child lives with his mother. There was nothing in the decree about what would happen if they disagreed, but then came COVID-19. At first, remote learning was mandatory so there were no other options, but then the state relaxed its rules. Children now have the option of in-person attendance or remaining remote. The mother, who had witnessed months of Zoom classes, wasn’t convinced it was working and sent the youngster back to school. The father found out, drove to the school and took the child home, stating that the chance of infection was far greater in school and he was unwilling to take the risk. In the end, the school decided that the language in the divorce decree gave the mother the right to decide. If this had been litigated, the outcome would not have been the same because the school’s interpretation would not have been upheld by a judge.

How to head off school conflicts

Some divorced parents might agree to letting the school be the final arbiter of whether their child attends in person or remotely. One problem I see with this transfer of authority is a judge is unlikely to uphold a school’s decision if the other parent challenges it. To avoid needless litigation, parenting orders will need to be much more specific in the post COVID-19 world. These will have to spell out exactly what rights does each parent have pertaining to the education of children. Questions like which school a child attends, who is allowed to pick them up from school, and who can choose remote vs. in-person learning will have to be decided and recorded in advance. There haven’t been a lot of these cases litigated yet, but there will be unless both parents think ahead.

Texas law facilitates the specifying of family obligations

Virtually no pre COVID-19 divorce decrees mentioned how to handle school attendance in a pandemic. Fortunately, Texas law is sufficiently flexible to direct specific responsibilities to one parent or the other. Texas Family Code 153.071 allows the court, or parental agreement, for the exercise of certain parental rights and duties by either each parent independently, by joint parental agreement, or solely by one parent. Court orders can go further into the education process. For example, one parent could have sole responsibility to decide on such things as special education services and counseling. These orders could also pre-determine what happens if the parents disagree. For example, the parents can agree to make joint decisions and if there is a dispute, the court order will contain a tiebreaker, such as the school counselor for education decisions. If you are in the same situation as my example parents discussed earlier (or are just planning ahead to avoid future problems), a modification of your existing decree will be required. To successfully modify any court order (even if both parties agree), you will definitely need expert representation.

A real can of worms

If you are contemplating or in the process of seeking a divorce, I encourage you to think about the dramatic impact of COVID-19 on custody issues. We’ve been talking about school attendance, but what about visitation, or previously planned trips? If a parent has to cancel a trip due to COVID-19, does he/she get to make it up later or is the opportunity lost forever? What if a child is with one parent when he/she received a positive test result? What if that parent is not the primary caregiver? You can see how this can get messy real quickly.

If you have any questions on existing or future custody orders, give my office a call. The pandemic opened a real can of worms, and we can help you make sense of it all.

Getting down to (online) business

Written by redheadedlaw on March 10, 2020. Posted in Facetime, Online Meeting, Skype.

Many of us spend the day jumping from one family or work assignment to the next. And just like mail at the post office, it never stops – the next morning we get up and are faced with another set of duties. I understand it can be very difficult to put aside a block of time for any meeting, particularly a potentially emotional consultation about family legal matters. I’ve practiced for over 30 years, and have learned that everything I can do to make this process easier leads to a better result for my clients. Business is conducted every day with the touch of a button (or mouse), including family legal services. I have been meeting online with clients all over the country since 2015, and today I want to highlight online appointments as a valuable option offered by the Essex Law Firm.

Family law is personal

Without a doubt, the vast majority of cases I resolve pertain to highly personal matters. Wills, adoption, child custody, divorce – there is very little in this world that is more personal than your heirs, kids or marriage. For many years law was a face-to-face interaction, because entrusting a stranger with such emotionally charged topics required you to first develop a relationship. As technology made it increasingly convenient to “meet” without leaving your home or office, the only impediment to virtual appointments became the two parties. Will you feel comfortable relaying your story to me (and will I be comfortable receiving it and offering advice) without sitting in some dark, wood-paneled office? Yes, because times have changed.

Building the relationship online

A successful 21st century client-attorney relationship is still a relationship, but it can now develop in different ways. All of us (especially my younger clients) are 100% capable of dialing a phone or initiating a video conference via FaceTime or Skype. And while it may be counter-intuitive, my experience suggests a virtual relationship is just as valuable as any developed in the traditional face-to-face manner. I have enthusiastically offered online appointments for years – here are a few reasons why these are a win for all:

Less disruption to routines
Let’s face it, when any of us have a 10 a.m. appointment for anything, we have to count backwards and determine when we have to start getting ready. This means where are the kids going to be, who walks the dog, what kind of traffic can I expect, what is the weather, etc, etc. Then once the meeting is over you have to drive back to your home or office. This mayhem can be avoided.
Less wasted time
I’m referring to the time wasted once you arrive. We try to hurry this process along, but there are still steps to follow. You will check in, sit briefly in a waiting room, be offered water and coffee and eventually be led to a conference room. But there is wasted time on my side also – I have to be sure the room is prepared and any confidential papers are put away. I’ll wait for the call from reception before I either greet you in the lobby or in the conference room.
Fewer distractions
When I walk into a lobby or an office, I’m taking in my new surroundings. Is the room well-appointed? Does the carpet have furniture marks (and if so, why are you moving your furniture around?). If you are meeting with someone for any reason (besides critiquing their decorating talents), this is counterproductive. But I’m human and I do it anyway, and I’m sure you all do it too when you could be thinking of the issues at hand.
Reduced missed appointments and reschedulings
This is the bottom line – it’s so much easier to arrange for a 30- or 60-minute Skype or Facetime call in your home than to make the arrangements to drive across town, park and have an office visit. For this reason, clients are much less likely to cancel, reschedule or just be a no-show. And this is the same for me. If I’m (for example) delayed in court, I can always find a conference room and be fully prepared for your call. These kind of meetings also enable me to be more precise with my scheduling so we can get down to business sooner.

A better, faster, more cost-effective result

The idea of meeting with me and discussing legal matters without sitting in my office may seem strange. I assure you, it’s not. We will get down to business sooner, get more done on each call and generally can expect a faster conclusion. And in my profession, a faster conclusion is always more cost-effective for you. You can book your online appointment easily on my website within minutes. If you haven’t tried it, you’ll be surprised how easy and secure (and productive!) online meetings can be.

Merry Christmas 2019

Written by redheadedlaw on December 20, 2019. Posted in Uncategorized.

At the Essex Law Firm, we want to wish you a Happy Holiday season, and a very Merry Christmas. We hope you enjoy family, friends, and all the goodies Santa brings you. We want to thank all of our clients this past year, and in the coming months if you or a loved one is in need of any family law assistance, please don’t hesitate to contact us.

How to get through the holiday spousal blues

Written by redheadedlaw on November 20, 2019. Posted in Marriage, Thanksgiving.

As far as holidays go, Thanksgiving is usually pretty easy to take. There are no gifts to buy, no songs you have to learn, and the main activity is eating and shaking off tryptophan-induced slumber during the afternoon football game. For couples, the main stress producer will likely be the number of guests you are expecting. But what if it’s your spouse you want to see trussed up in a roasting bag? This can turn your holiday into a tedious, week-long ordeal that is uncomfortable for all concerned. What can couples having marital problems do to make this family event go smoothly?

First – how bad is it?

This is important because one thing you can absolutely guarantee a holiday will do (if you let it) is magnify existing tensions. So you have to ask yourself, “Am I really no longer interested in my marriage or do I just need a break?” The endless damp towels on the bathroom floor are an annoyance on most days, but when company is present (especially judgmental in-laws – you know who you are) this becomes a titanic struggle for the future of mankind. This is particularly true for women, who have been unfairly conditioned for generations (yes, even now) that their worth is determined by how well-oiled their holiday machine runs. On the other hand, men (perhaps due to observing their fathers and grandfathers) often believe their only responsibility to the holiday juggernaut is to show up, be loud and scratch themselves with precision.

Maybe the answer isn’t yet clear

OK, I would suggest to you that if the answer to “how bad is it?” doesn’t immediately cause a spike in blood pressure, there is hope for both of your futures together. So now we are back to the original question – how do you get through a potentially stressful holiday situation? In my experience, communication is key, followed by expectation and cooperation. It can work like this – sit down with your spouse during a quiet moment and acknowledge that while there are unresolved issues between you, a holiday is coming up that will require hosting family and entertaining people of different ages. Then review what you both see as the different chores and events that will need to be handled during the visit. This is the communication part that lays the groundwork for all that follows because it identifies possible pain points. Following this discussion, you both will have a good idea of what is concerning (and often frightening) to the other. And now everything is less scary because it’s been defined and no longer a big mystery.

Working together

With the issues identified, we move on to expectation. You can now mutually assign tasks with agreement on how they will be completed and when. Who will be walking the dog that week? Who greets the guests at the door? Who takes drink orders and clears the table? Don’t be afraid to play to each others’ strengths when assigning tasks. For example, while the husband may be willing to learn how to iron napkins, his time may be better spent elsewhere (like frying the turkey). Getting the division of labor handled should eliminate a great deal of stress because each person has assigned tasks and the expectation that everything else will be handled by the other. This leads to cooperation, which can be the most sensitive part. Here’s your first quiz – if you see that your spouse is not walking the dog on time, do you:

Whisper that the dog probably needs to go out very soon
Remind him/her of what the dog will do without time outside
Wait until dinner is served and wrap the leash around his/her neck

Remember, you both agreed to cooperate to get through this holiday, so gentle reminders may be needed. With guests in the house and non-standard meals being prepared, there will be a certain level of unavoidable chaos to work through. Each of you will be expected (by the other) to handle the assigned tasks on time and be flexible.

What if it doesn’t work?

Disasters can happen, but it’s up to you both to determine their significance. So your son-in-law’s pit bull became romantically involved with your new couch – who could have seen that coming, right? Maybe Uncle Ricky got so inebriated that he passed out under the table. It’s up to you to determine whether these incidents become part of family lore or another brick through the window of your relationship. If after the holiday you are still unhappy and unsatisfied with your spouse, feel free to give my office a call. I can help you discuss the next steps.